On March 13, 2014, the Law Society of England and Wales announced that it had released guidelines to help solicitors in the United Kingdom apply Sharia law succession rules. Specifically, the guide deals with drafting wills, trust issues and disputes over estates, and explains in detail how to write wills that respect Islamic traditions while complying with UK law.

What is Sharia law?

Sharia is a code of law derived from the Quran, the teachings and example of Mohammed and the collective reasoning and deductions of Muslim imams (religious leaders). According to the Pew Research Center, Sharia governs a wide range of issues in a Muslim’s life, such as crime and punishment, marriage, divorce, inheritance, banking, contracts, diet and attire.

In February 2008, UK government formally recognized the first Sharia law “courts.” They’re classified as arbitration tribunals under the Arbitration Act 1996. The rulings of arbitration tribunals are binding in law, provided that both parties in the dispute agree to give the tribunal the power to rule on their case. This establishes Sharia courts as a parallel quasi-legal system operating in the UK within some Muslim communities. With respect to succession, Muslims can legally bequeath their assets according to Sharia, providing the will is signed in accordance with the requirements set out in the Wills Act 1837.

Impact of guidance on legal community

The Law Society guide explains that according to Sharia law, a woman does not have equal rights in inheritance matters; for example, a female heir is entitled to half of the inheritance provided to a male heir. In addition, illegitimate children, non-believers or heirs married outside the Muslim faith may be excluded. Further, a divorced spouse is no longer a Sharia heir, as the entitlement depends on a valid Muslim marriage existing at the date of death.
While British law doesn’t require that heirs receive equal shares of an estate, Sharia law clearly goes against many principles established in British law, particularly that of equality.

The move has been criticized as a backwards step that undermines the British justice system. Many are condemning the Law Society for issuing its practice note and asking for its withdrawal. The National Secular Society has even gone as far as to say:

“The Law Society is a secular organization representing solicitors in a secular legal system. It would not and should not give guidance on the Torah, the book of Revelations, the Bhagavad Gita, or the Guru Granth Sahib, and nor should it give guidance on Islamic theology. For this reason, if nothing else, the decision to issue the practice note is utterly absurd.

By issuing the practice note, the Law Society has created an assumption, whether it intended to or not, that Sharia law is a credible and respectable legal discipline just like any other within the English legal system. …It’s not for the Law Society to generously give Sharia law – which has the status of theology in this country – the credibility of a legal discipline within our jurisdiction.”

I have to say, I agree with the above statements!

It’s one thing to authorize Sharia tribunals (a controversial move in itself), but another to implicitly endorse Sharia law, and the Law Society certainly has no mandate to do so. It is likely impossible to create a definitive guide, if that were desirable or appropriate for the Law Society to do. The society even acknowledges that there are variations of Sharia and that its guide is based on Sunni theology. I suppose it should make no difference that the society has chosen to discriminate further with its already discriminatory guide. Moreover, lawyers who wish to handle Muslim clients’ requests can surely find other more comprehensive and less controversial resources.

So why would the society court controversy by publishing such a guide? Will the Law Society go ahead and publish a guide to Orthodox Jewish law or others, or is this Sharia guide a non-issue that will simply be forgotten? One way or another, it will certainly be interesting to see how this parallel system evolves over the coming years.

Comments

I find myself baffled by the discussion, as I frequently am by discussions of sharia in these increasingly strange times. The practice note in question is clearly in response to confusion and requests for assistance by UK solicitors in ensuring that private law structures and arrangements (wills, estates and trusts) requested by their clients conform to the relevant religious law.

The National Secular Society’s statement that “the Law Society has created an assumption, whether it intended to or not, that Sharia law is a credible and respectable legal discipline ” is absurd and departs from absurd premises. These are private law matters, in which, absent any offense to public policy, the wishes of the parties govern absolutely.

For that matter I assure you (and, for what it’s worth, the NSS) that sharia is indeed credible, and certainly respectable, if we are to afford the most basic respect to the equal rights of those who practice Islam.

To call this “discriminatory” is, to my view, straightforwardly offensive to Muslims, and in fact can only be read as intending to give offense. If Muslims wish to arrange their private affairs in conformance to religious law, then absent any offense to public policy (and, as always, subject to the relevant public laws) they are (and must be) free to do so. It cannot be discriminatory to allow a private citizen to arrange his or her private affairs in conformance to his or her faith.

As far as the Law Society having a mandate to “authorize” sharia, although this guide by no means does so, what it has a mandate to do is to assist and serve lawyers in the UK, and the practice of law and the public seeking expert legal services. And in publishing this guide, that’s what it is doing.

An element that is not clear to me from the description above is what the Law Society is advising on. Is there any suggestion that the usual rules of inheritance under the version of Sharia they are talking about are mandatory? Or is the advice really the equivalent of saying ‘here’s what an Islamic court would do on an intestacy?’

Are the parties free to do something else, without fear of impiety? Consider Islamic finance: one can make a variety of deals, but one cannot properly create an obligation to pay interest. That is not a permissible option.

May Muslims properly (i.e. according to Islamic principles) make wills dividing property equally betweeen a son and a daughter, or leave property to a non-believer, even though an Islamic court in the absence of the will would not dispose of it that way?

If the answer to this question is Yes, then I would hope that the Law Society makes the freedom to depart from the ‘intestacy’ option very clear. It should not suggest that the dispositions set out in the above article are specially desirable, as distinct from a starting point from which departures are entirely legitimate.